Pinterest is blowing up – with cries of copyright infringement

Pinterest is many things to many people. For some it’s a collection of things you aspire to own, for others a source of DIY inspiration, or even a way to pitch an advertising campaign. While it definitely appeals more to some than others, you can’t deny its overwhelming command of the social market and its incredible growth.

But while we’re all trying to wrap our heads around what exactly this stunning new platform is and does, it’s becoming fairly clear it’s toeing a dangerous line concerning copyright infringement. Even users benefitting from the site are concerned about the ethics of the Repin button. Is Pinterest priming itself for a lawsuit or is it just one step ahead in the evolution of the Internet image citation?

Is all ‘fair use’ in love and Pinterest?

Precedents regarding what is and isn’t OK on the Internet are being decided faster than we know. One of the most important, with regard to Pinterest, was set only five years ago. In 2006, Google was taken to court for copyright infringement over thumbnail images that didn’t properly attribute rights holders. The courts ruled in Google’s favor, and a new precedent was set in 2007.

Both Pinterest and its detractors cite the case in their support. Pinterest defenders claim what it does closely parallels Google, and is therefore protected by the same fair use laws. Detractors argue that because Pinterest is circulating content much larger than a thumbnail and using full-resolution images, the laws that shielded Google don’t apply.

From a technical perspective, Pinterest is hosting full-size, full-resolution images on its servers without the rights holders’ permission, while also removing reference to the source. It’s how the entire repinning, reposting model works. And it’s legal – under current legislation. It’s pretty much what SOPA was targeting, but we’ll get to that later.

You can’t shift the blame

At the moment, Pinterest is following the letter of the Internet law by giving the public a way to report copyright infringements. According to the Digital Millennium Copyright Act (DMCA), Pinterest simply needs to pull a reported image that has been published without proper citation.

“Pinterest respects the intellectual property rights of others and expects its users to do the same,” the site explains. “It is Pinterest’s policy, in appropriate circumstances and at its discretion, to disable and/or terminate the accounts of users who repeatedly infringe or are repeatedly charged with infringing the copyrights or other intellectual property rights of others.”

Those whose content has been repinned to oblivion without being attributed correctly can report it by filling out the DMCA Notice of Alleged Infringement and sending it to Pinterest – which will take action as it sees fit.

“They take whatever discretion they deem appropriate but there isn’t an obligation that they take it down,” says IP lawyer and MyCorporation CEO Deborah Sweeney. It’s also not exactly easy: Pinterest is small company still trying to catch up with its user base. How quickly can it actually act? We’ve tried to contact Pinterest for comment multiple times in the past, to no avail. We also contacted Pinterest to ask about their process for removing content that’s been reported as copyrighted, but have yet to hear back.

Pinterest etiquette also dictates that users properly attribute pins: “Pins are the most useful when they have links back to the original source. If you notice that a pin is not sourced correctly, leave a comment so the original pinner can update the source. Finding the original source is always preferable to a secondary source such as Google Image Search or a blog entry.”

The problem is that under the current legislation, this means it’s basically no one’s fault. If Pinterest were responsible for manually grabbing content and putting it on the site, it would be its fault – but it’s not. And users can’t be held responsible for repinning something that hasn’t properly been cited. As Sweeney explained to us, “That would be like looking at a Google image and being litigated for offending the trademark.”

The only thing you could possibly trace this back to would be the original pinner. If you’re browsing a site and want to grab something, before clicking “Pin it,” should you have to ask? Right now, you don’t. But even if this were the case, the recourse for copyright holders would be complaining to Pinterest, which would use its discretion to remove the image… just like it does now.

“I think really there wouldn’t be any liability for the repinner, it would be almost impossible to identify them,” Sweeney says. “It would end up going back to Pinterest. They are the ones to gain from it.”

Even so, some aren’t willing to chance it. The Boston Business Journal recently came across some damning loopholes in Pinterest’s TOS. Basically the site has decided not to use Pinterest because according to its working, if an image you pinned (which, reminder, uploads it to Pinterest’s servers) isn’t actually yours and Pinterest sells it (which it says it has the right to do), you will be the one responsible if accused of copyright infringement. Sweeney confirmed this, telling us, “If a user uploads content and does not have the right to the content that is uploaded, and then Pinterest subsequently uses, sells, transfers or publicly displays this content, the user who wrongfully uploaded the work could face liability.”

Wait… isn’t this what SOPA was fighting?

When you’re using Pinterest and want to find out where a particular photograph originated, it can take multiple clicks until you get there. On many occasions you’ll find yourself at Blogspot, Google Images, or Tumblr. This ambiguity is what raises concern for many copyright holders.

“I am concerned that Pinterest users can be violating the copyright of other Web users without meaning to,” says Pinterest user and Lizbeth’s Garden blogger Elizabeth C. Elizabeth (who did not release her last name) also runs an Etsy store of self-crafted goods she has used Pinterest to promote. “I also have huge concerns about how easy it is for the original source to be lost on Pinterest, which may also result in copyright [or] license violations even if the original pin was not in violation.”

That sounds well-intentioned enough – but it’s exactly how SOPA defenders would describe the since-defeated bill. It was supposed to, in part, give redress to all of these creators whose images and products were being passed around without properly linking back to them. Of course, it obviously had a lot of other stipulations that amounted to blatant censorship and ways for big rights-holding companies to make more money. SOPA would have killed Pinterest – as well as a host of other sites for that matter.

And we might have been convinced to support SOPA – 10 or 15 years ago. But that just isn’t how the Internet works anymore. The solution isn’t to wipe Pinterest and similar sites from the face of the Internet by litigating them to death. The law will have to recognize both the rights of copyright holders and the value of what Pinterest does. “It’s about morphing to meet these great new ideas,” says Sweeney.

A game of give and take

There is one group most affected by all this: users with content—specifically photographs and graphic designs – circulating Pinterest.

“I believe it is worth it for someone like me, who isn’t selling images,” says Elizabeth C., who despite not finding herself hurt by the Pinterest model, says she will stop using the site. “I sell actual objects, the image is not nearly the same thing and won’t do you any good if you want the actual thing I sell. A lot of skill goes into making my beaded tassels, I’m not worried about people trying to replicate one from a picture. But for people who sell images, I’m not sure the risk is worth it.”

For graphic artists and the like, there appears to be a trade-off. Yes, your content-holder rights are potentially getting trampled, but you’re also getting more eyes than you know what to do with. The Wall Street Journal reports that Pinterest had 11 million unique visitors last month, and that visitors spent nearly 100 minutes using the site in the same period – an insanely high number.

Some businesses even claim it’s been boosting sales. “Our traffic converts to sales,” co-founder of The Wedding Chicks Amy Squires told WSJ. She said the retailer earned an additional $200,000 in 2011, thanks much in part to Pinterest. She also says the site brings nearly twice as many monthly visitors than Twitter and Facebook.

Blogger and Etsy shop owner Sunny Crittenden is somewhat torn about using Pinterest. “Free advertising is free advertising and with what I do, the images online don’t do them justice,” she says. “Also, no one’s going to be able to figure out what I do or how I do it from a pinned image, it’s not like they’re going to be able to reproduce my work very easily or print it out – my images aren’t big or nice enough – so I’m not worried about it.”

And even though his medium is most positioned for hurt, photographer Trey Ratcliff is utterly in defense of Pinterest. “It seems like fair use to me,” he tells us. “I’m not complaining. Why would I? Look, we get a quarter million unique visits to StuckInCustoms, and now 15-percent of that traffic comes from Pinterest.”

When asked if he thought copyright infringement cries would escalate once the site starts a business model, he made one thing very clear: This is good for creators. “Let me say something about this whole thing as an artist. A pure artist has two motivations: creation for the sake of creation and sharing for the sake of connecting with the world. Now when it comes to making money, that is another matter. It is, of course, wrong for companies or people to make money off my personal hard work and artistic creations. I don’t really see that happening with Pinterest. Pinterest’s value is in the collections, links, and social sharing of it all.”

What happens next

The good news to be found in this incredibly messy issue is that the Pinterest community isn’t focused on claiming rights over something that isn’t theirs. The entire focus of the site is about sharing things you’ve found. It’s about admiring others’ work — and yes, for retailers and creators to promote their content — but the concept remains about visually circulating ideas. Copyright infringements can mostly be traced to improper or missing citation, not users outright lying about ownership. I’ve yet to witness or hear about a case in which someone on Pinterest is trying to claim ownership over something he or she didn’t actually create.

Pinterest also recently learned an unrelated lesson that sheds some light on how the site is developing. The site was found to be using Skimlinks, an affiliate-linking service, without clearly informing users. This created a big to-do and some trust issues between the Internet and Pinterest. The company remained rather tight-lipped until yesterday, when CEO Ben Silbermann got in touch with LL Social, which broke the original story. Apparently Skimlinks was a test on Pinterest’s part, and has not been permanently implemented into the site. It’s gone now, and Pinterest will be adding a forthright disclosure that basically says “We’re trying to find out how best to make money – and we haven’t decided one way or the other yet!”

It’s encouraging because Pinterest is being fairly flexible, and doesn’t seem scared of messing up its precious site by experimenting.

So will it listen again? “I think Pinterest should do more to teach the pinning community how to properly pin things with attribution,” says Crittenden. “Did you know Pinterest saves a copy of each image that gets pinned, creating a duplicate and therefore competing copy of each image? The reason for this, I think, is due to bandwidth, and that makes sense. But I really wish Pinterest would save a smaller version of each image, more like a thumbnail, so it’s not a competing image and the pinner is forced to go to the original source to view a larger version.”

Sweeney doesn’t foresee this issue spiraling into a class-action lawsuit, although she doesn’t rule out judicial involvement. “It is so expensive [for an individual] to pursue this, let alone against an entity whose entire business is to promote via pictures,” she says. “You can form case law, though, like Google did, and I think the same thing could happen with Pinterest. Where in the public interest the counsel goes forth and makes it a public policy issue and forms case law as a result.”

As serious as all that sounds for a silly site proliferating cupcake recipes and wedding inspiration, Pinterest has clearly tugged at a nerve in the Internet community, and it’s not going anywhere. It’s spawned a variety of similar sites, and is testing out monetization models. So whether it chooses to self-monitor its wasteland of lost citations or a government-involved process, it’s clear this emerging platform has a few loose ends to tie up.